While the Compact does not create a private right of action, this does not leave supervised individuals without recourse under Section 1983. Instead, their claims must be framed as violations of constitutionally protected rights. There are numerous reported cases that illustrate the types of constitutional violations supervised individuals may allege in connection with their supervision under the Compact.

A leading case is Doe v. Pennsylvania Board of Probation and Parole, 513 F.3d 95, the Third Circuit case noted in the subsection immediately above. In Doe, a sex offender who transferred his probation and parole supervision from New Jersey to Pennsylvania filed a Section 1983 lawsuit against officials in the receiving state. He claimed that his equal protection rights were violated when he was subjected to community notification requirements more stringent than those applied to non-ICAOS supervised individuals in Pennsylvania. Specifically, Pennsylvania mandated that all out-of-state sex offenders submit to community notification, while individuals convicted of similar offenses within Pennsylvania were only required to do so if they were designated as sexually violent predators following a civil hearing.  The court rejected Pennsylvania’s justifications for the differential treatment, noting that the state’s own compact-enabling legislation explicitly mandated that ICAOS supervised individuals be supervised under “the same standards that prevail for its own probationers and parolees.” Id. at 108. Even applying the most deferential level of constitutional scrutiny (rational basis review), the court found no rational relationship between Pennsylvania’s legitimate interest in public safety and its policy of disparate treatment for out-of-state supervised individuals. The court therefore held that Pennsylvania violated Doe’s right to equal protection under the Fourteenth Amendment to the United States Constitution. Id. at 112.

In Jones v. Chandrasuwan, 820 F.3d 685 (4th Cir. 2016), the United States Court of Appeals for the Fourth Circuit ruled in a Section 1983 action that probation officers from the sending state (North Carolina) violated an ICAOS probationer’s Fourth Amendment rights by seeking his arrest without a reasonable suspicion of a violation. The alleged violations (a failure to pay fines and costs, absconding) were not properly coordinated through the receiving state’s (Georgia) ICAOS office, which led to a misunderstanding about the probationer’s address and whereabouts. He was arrested and improperly detained for seven days. Notwithstanding the finding that the probation officers had violated the defendant’s constitutional rights, the court ultimately determined that the officers were entitled to qualified immunity, as discussed below in section 5.3.6.

Of course, not every alleged violation will be an actual constitutional violation. For example, in Brock v. Washington State Department of Corrections, No. C08-5167RBL, 2009 WL 3429096, at *1 (W.D. Wash. Oct. 20, 2009), a parolee transferred supervision from Montana to Washington through the Compact. The supervised individual alleged, among other things, that Washington parole officials violated his federal constitutional rights (1) under the Due Process Clause by failing to hold a probable cause hearing on the alleged violation and (2) under the Confrontation Clause by offering hearsay testimony at his violation hearing. The court concluded that the failure to hold a preliminary hearing—even if required by statute—did not give rise to a constitutional violation when the final violation hearing was held three days after the violation report was filed. And as for the alleged Confrontation Clause violation, the court found that Sixth Amendment confrontation rights apply in a criminal trial, not at a parole violation. Id. at *8. With no constitutional violation alleged, the court dismissed the suit without any need to consider whether the defendant-officials were protected by immunity or another defense.

A common situation that has generally not been considered a constitutional violation is when a receiving state fails to promptly release a supervised individual from detention after being informed that the sending state does not intend to retake them. In Kaczmarek v. Longsworth, 107 F.3d 870 (6th Cir. 1997) (unpublished), the United States Court of Appeals for the Sixth Circuit found no constitutional violation when a Compact probationer was held in the receiving state (Ohio) for more than a month after officials there learned that the sending state (Michigan) would not pursue retaking. The court rejected the supervised individual’s argument that the delay violated his rights to due process and to be free from cruel and unusual punishment, noting that the sending state alone does not “call the shots” in Compact cases. Id. at *4. To the contrary, the receiving state was entitled to apply the same standards to Compact-supervised individuals that it would apply to its own supervisees—including detaining them when they had other charges pending, as was the case here. Id. at *2. See also Perry v. Pennsylvania, No. 05-1757, 2008 WL 2543119, at *1 (W.D. Pa. June 25, 2008) (a receiving state did not violate a supervised individual’s constitutional rights by detaining him without bond during the pendency of charges in the receiving state, even after the sending state determined that it would not issue a probation warrant related to the receiving state charge).